Ex Parte Nanikashvili

Patent Trial and Appeal Board

Sep 11, 2015

11144891 (P.T.A.B. Sep. 11, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/144,891 06/03/2005 Reuven Nanikashvili 40007139-0003-002 3184
26263 7590 09/11/2015
DENTONS US LLP
P.O. BOX 061080
CHICAGO, IL 60606-1080
EXAMINER
JIAN, SHIRLEY XUEYING
ART UNIT PAPER NUMBER
3769
MAIL DATE DELIVERY MODE
09/11/2015 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte REUVEN NANIKASHVILI
____________

Appeal 2013-002747
Application 11/144,8911
Technology Center 3700
____________

Before STEFAN STAICOVICI, EDWARD A. BROWN, and
LEE L. STEPINA, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Reuven Nanikashvili (Appellant) appeals under 35 U.S.C. § 134(a)
from the Examiner’s final decision rejecting under 35 U.S.C. § 103(a)
claims 1–4, 6, and 34–43 as unpatentable over Mazar (US 2004/0117204
A1, pub. June 17, 2004) and Cosentino (US 2004/0102685 A1, pub. May 27,
2004). 2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b).

1 According to Appellant, the real party in interest is Life Watch
Technologies Ltd. Br. 3.
2 Claims 5 and 7–33 have been canceled. Id.
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SUMMARY OF DECISION
We AFFIRM-IN-PART.

INVENTION
Appellant’s invention “relates to systems and methods for monitoring
the health of one or more multiple persons, especially within a building that
includes multiple rooms.” Spec. ¶ 1.
Claim 1, the sole independent claim, is representative of the claimed
invention and reads as follows:
1. A terminal comprising:
a wireless transmitter;
a wireless receiver, adapted to receive processed
physiological data; wherein the processed physiological data is
wirelessly transmitted by a wireless telemeter that wirelessly
receives physiological data collected by at least one sensor and
processes the physiological data to provide the processed
physiological data;
a power line transmitter, coupled to the wireless receiver;
a terminal controller, coupled to the power line
transmitter and the wireless receiver, for controlling the power
line transmitter and the wireless receiver;
wherein the terminal controller is adapted to at least
partially process the processed physiological data;
wherein the process comprises performing health event
detection;
wherein the terminal controller is further adapted to
determine whether to transmit said processed physiological data
over the at least one power line or to wirelessly transmit said
processed physiological data over a wireless connection;
wherein the wireless transmitter is arranged to wirelessly
transmit the processed physiological information if it is
determined to wirelessly transmit the processed information;
and
wherein the power line transmitter is arranged to
transmit, over the at least one power line the processed
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physiological information if it is determined to wirelessly
transmit the processed information over the at least one power
line.

ANALYSIS
Claims 1–4, 6–38, 41, and 42
Appellant has not presented arguments for the patentability of claims
2–4, 6–38, 41, and 42 apart from claim 1. See Br. 10–13. Therefore, in
accordance with 37 C.F.R. § 41.37(c)(1)(iv) (2014), we select claim 1 as the
representative claim to decide the appeal of the rejection of these claims,
with claims 2–4, 6–38, 41, and 42 standing or falling with claim 1.
The Examiner finds that Mazar discloses most of the limitations of
claim 1, but “fails to disclose power line transmission.” Final Act. 4
(citations omitted). Nonetheless, the Examiner finds that “Cosentino . . .
discloses power line carrier transmission . . . as a suitable wired
communication method” for transmitting physiological data. Id. (citing
Cosentino ¶ 44). The Examiner thus concludes that it would have been
obvious for a person of ordinary skill in the art “to use known methods such
as power line carrier transmission as disclosed by Cosentino with [the]
system of Mazar to provide the expected results of transmitting data from
one location to another.” Id.
Appellant argues that because Cosentino’s electronic scale
communicates solely with a wired modem, a wireless connection or a power
line, Cosentino teaches away from having a terminal controller coupled to
and controlling both a wireless receiver and a power line transmitter, as
called for by claim 1. Br. 10–11.
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Appellant’s arguments are not commensurate with the Examiner’s
rejection. The Examiner used the disclosure of Mazar, and not Cosentino, to
disclose a terminal controller adapted to process processed physiological
data, perform health event detection, and to determine whether to transmit
physiological data over a wired connection or over a wireless connection.
See Final Act. 3 (citing Mazar, ¶¶ 40, 42, 46, 56, 90, and 105). As such, the
Examiner is not proposing to include Cosentino’s electronic scale in the
system of Mazar, but rather using a power line carrier transmission, as
taught by Cosentino, as an alternative to a wireless or wired transmission in
the system of Mazar to transmit physiological data. Cosentino does not
“criticize, discredit or otherwise discourage” using a power line carrier
transmission in addition to a wireless transmission. See In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004). Moreover, Mazar specifically discloses
an interrogator/transceiver unit 108 that “functions in a hybrid form utilizing
wireless communication when available and defaulting to a local wireless
portal or a wired connection when the wireless communication becomes
unavailable.” Mazar, ¶ 42 (emphasis added). Hence, the Examiner’s
modification is an improvement to Mazar’s system to add Cosentino’s
power line carrier transmission, to lead to the predictable result of having an
additional communication method, and the modification is well within the
skill of one having ordinary skill in this art. KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 417 (2007) (“[I]f a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.”).
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In conclusion, for the foregoing reasons, we sustain the rejection
under 35 U.S.C. § 103(a) of independent claim 1, and claims 2–4, 6–38, 41,
and 42 falling with claim 1, as unpatentable over Mazar and Cosentino.

Claim 39
Claim 39 depends from claim 1 and adds the limitation that the
claimed terminal is adapted to determine, in response to multi-path
interference, whether to transmit physiological data over a power line or
over a wireless connection. See Br. 16.
The Examiner finds that although “Mazar and Cosentino fail to
disclose evaluating communication interference apart from evaluating signal
strength and communication availability,” nonetheless, “it would have been
obvious to one of ordinary skill in the art of data transmission to evaluate
communication interference to provide the expected results of choosing
optimal communication paths.” Final Act. 5.
Appellant argues that the Examiner’s conclusion is based on
“forbidden hindsight” because “Mazar explicitly states that the ITU can
automatically fail-back to wired communication when there may be a
compromised communication (paragraph [0046]).” Br. 13. Thus, according
to Appellant, “even in the presence of multi-path interference a change to
wired communication will not occur unless the communication is
compromised.” Id.
Once more, Appellant’s arguments are not commensurate with the
Examiner’s rejection. The Examiner recognizes that Mazar’s system, as
modified by Cosentino, fails to disclose evaluating communication
interference. See Final Act. 5. However, the Examiner correctly finds that
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Mazar’s ITU 108 “performs self-diagnostic tests for checking its wireless
capabilities . . . including checking wireless availability, wireless signal
strength and bandwidth, and provides a solution scheme for reverting to
wired communication in the presence of a wireless issue.” Ans. 10–11
(citing Mazar, ¶¶ 46 and 115). As such, because “multi-path interference is
a type of wireless communication error” (see Ans. 11), we agree with the
Examiner’s conclusion that it would have been obvious for a person of
ordinary skill in the art to further modify the terminal of Mazar, as modified
by Cosentino, “to evaluate communication interference to provide the
expected results of choosing optimal communication paths.” Final Act. 5.
Appellant has not shown error in the Examiner’s reasoning. Therefore, we
are not persuaded that the Examiner relied on impermissible hindsight, as
Appellant contends.
Hence, we likewise sustain the rejection of claim 39 over the
combined teachings of Mazar and Cosentino.

Claims 40 and 43
Claims 40 and 43 require, inter alia, that the claimed terminal either
wirelessly relays or wirelessly receives physiological information to or from
another terminal. See Br. 16–17.
The Examiner finds that “Mazar discloses in paragraphs 0094 – 0097
that ITU [108] has data repeater capabilities and thus is capable of wirelessly
receiving data from other ITUs to retransmit to a central server.” Final Act.
5. Thus, according to the Examiner, “it is inherent that an ITU, having the
transmission capabilities as disclosed in Mazar, would be capable of
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communicating and relaying physiological data to and from another ITU.”
Ans. 10 (emphasis added).
Appellant argues that Mazar’s “data repeater is limited to exchanging
data between itself and medical devices (not other repeaters) and to itself
and the repository (paragraph [0100]).” Br. 12 (emphasis omitted).
We agree with Appellant’s position as the Examiner is relying on a
theory of inherency to establish that Mazar’s repeater device 610 is capable
of communicating and relaying physiological data to and from another
repeater device. “Inherency, however, may not be established by
probabilities or possibilities. The mere fact that a certain thing may result
from a given set of circumstances is not sufficient.” In re Robertson, 169
F.3d 743, 745 (Fed. Cir. 1999) (citations omitted). Although the Examiner
is correct that Mazar’s repeater device 610 can communicate and relay data
with other devices, this is no way demonstrates that Mazar’s repeater device
610 is capable of communicating and relaying data to and from another
repeater device. Just because Mazar’s repeater device 610 communicates
with medical device 604 and with data repository 614 does not necessarily
mean that it is capable of communicating with another repeater device 610,
as the Examiner finds. See Mazar, ¶¶ 95, 97, and Fig. 5.
As such, although Mazar’s repeater device 610 communicates and
exchanges information with medical device 604 and with data repository
614, this does not necessarily mean that Mazar’s repeater device 610 is
adapted to wirelessly relay or wirelessly receive physiological information to
or from another repeater device 610. Therefore, we do not sustain the
rejection under 35 U.S.C. § 103(a) of claims 40 and 43 as unpatentable over
Mazar and Cosentino.
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SUMMARY
The Examiner’s decision to reject claims 1–4, 6, and 34–43 is
affirmed as to claims 1–4, 6, 34–39, 41, and 42 and reversed as to claims 40
and 43.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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